Submission of the Assembly of First Nations (AFN) on Free Prior and
Informed Consent (FPIC) for the Expert Mechanism on the Rights of
The Assembly of First Nations (AFN) welcomes this opportunity to provide input
into the Expert Mechanism’s study on free, prior and informed consent (FPIC).
FPIC lies at the heart of the UN Declaration of the Rights of Indigenous Peoples
and is essential to protecting and upholding the diverse range of rights affirmed in
the Declaration and in the wider body of international human rights law as a
whole. It is an aspect of our rights, as peoples, to the right to self-determination.
The repeated affirmation of FPIC in the UN Declaration and the work of UN
Treaty bodies and Special Mechanisms respond to the urgent necessity of
respecting the right of Indigenous peoples, as peoples and nations, to make our
own decisions about our lives and our futures, through our governments and
representative institutions. For First Nations, consent means, quite simply, the
ability to say no, to say yes, or to say yes but with conditions. It means having the
decisions of our governments (and the will of our peoples), respected by other
governments, institutions and private interests on any matter affecting our
political, economic, cultural and social development.
The terms ‘free,’ ‘prior’ and ‘informed’ define the essential preconditions for
States such as Canada to meet their obligations under international law. These
preconditions happen to be consistent with Canada’s Constitution respecting
relations with First Nations. This includes protection from duress and coercion;
disclosure of all necessary information; honesty and fair dealing on the part of
government and other proponents; as well as capacity to deploy our own
knowledge and values through the application of our own laws and to conduct, for
example, assessments of the potential impacts; and assurance no actions will be
taken until First Nations have had time and opportunity to come to a decision
according to our own processes and traditions.
FPIC is more than a principle. FPIC is a well-established, widely accepted and
essential expression of a wide range of international human rights, including the
right of self-determination, and therefore must be respected, protected and upheld
as a standard in international law. FPIC serves as a procedural safeguard for other
human rights and therefore should also be applied as a precautionary human rights
More than 10 years have now passed since the global adoption of the UN
Declaration as a body of minimum standards for the realization of the human
rights of Indigenous peoples. This decade has seen significant developments in
the exercise of FPIC by Indigenous peoples and in the acceptance of FPIC by
states and the private sector. There are increasing examples of processes of
mutual agreement conducive to the realization of FPIC.
In Canada, First Nations have long struggled against the suppression of our right
of self-determination. The essence of FPIC, of forging ties based on mutual
respect and agreement, is a critical aspect of the nation-to-nation relationship that
First Nations and Canada are committed to restore. Work must continue to realize
and implement this essential aspect of relations between First Nations and Canada.
However, we have observed that FPIC can be misunderstood or misrepresented –
by those less familiar with international human rights law, and the role
international law plays in understanding the rights of First Nations affirmed by the
Canadian Constitution. This lack of capacity is evident in government, academia
and other institutions, and constitutes a barrier to the full enjoyment of the rights
affirmed by the UN Declaration. Considerable work lies ahead to establish the
required mechanisms in law and policy to ensure that FPIC is upheld.
The AFN commends the Expert Mechanism for undertaking its study of FPIC at
such a crucial moment. Indigenous peoples, states and civil society will all benefit
from a study of the meaning and importance of FPIC - one firmly grounded in an
accurate understanding of the UN Declaration and the wider body of international
At the same time, the AFN has concerns respecting some aspects of how FPIC
appears to have been framed in the Expert Mechanism’s Concept Note for this
study and the implicit assumptions that this framing may reflect. These concerns
are of such importance that we want to present them from the outset of our
First, the concept note appears to excessively focus on the specific language of a
few provisions of the UN Declaration rather than on the wider framework of law,
within and beyond the Declaration, on which interpretation of these provisions
must be based. As the members of the Expert Mechanism are aware, individual
provisions of the Declaration cannot be accurately understood in isolation. Each
must be read in relation to each other and to the wider body of international law.
This is a standard of interpretation applicable to all international instruments, but
it is particularly important in respect to the provisions of the UN Declaration
because the agreed working method of its drafting was to consolidate existing
international standards, and not elaborate ‘new rights’ or adopt standards that fell
below existing norms and state obligations. Accordingly, in Section 3 below our
submission engages in some detail with understanding the foundations of FPIC in
international law before further elaborating on the interpretation of FPIC in the
Second, we want to raise concerns about a possibly unintended implication of the
third part of the concept note, which focuses on the question of whether or not
FPIC is required in respect to specific rights. Our interpretation of FPIC in the
UN Declaration and the wider body of international law identifies numerous
situations where free, prior and informed consent is either mandatory in all
instances or where it is reasonable to presume that FPIC is likely required.
However, we strongly reject the notion that there are corresponding situations
where it can be assumed from the outset that FPIC is not required. We submit that
in every instance, there must be careful examination of the situation of the
Indigenous peoples concerned and the potential implications of the decision in
question, including the nature of the rights at stake, the heightened risk of harm
that may have been created by previous unaddressed violations of their rights, and
how the affected peoples themselves understand and assess the risks involved.
There is no answer to the question ‘when is FPIC not required’ outside of such a
Finally, we are concerned that the EMRIP study must clearly delineate
consultation and free, prior and informed consent. We agree that the objective of
obtaining mutual agreement is one of the defining characteristics of meaningful
consultation. We also suggest there are a number of other characteristics
necessary for consultation processes to comply with the standards of “consultation
and cooperation” repeatedly called for the UN Declaration. In those instances
where it can be determined that FPIC is not required, Indigenous peoples’ rights
under international law nonetheless always require both meaningful consultation
and cooperation as the minimum standard of rights protection. “Cooperation”
necessarily includes a consensual element. As indicated in article 38 of the UN
Declaration, the minimum standard is “consultation and cooperation” – not mere
consultation. Critically, where FPIC is required, consultation processes, no matter
how robust, cannot be a substitute for consent.
As we set out below, interpretations of FPIC as requiring nothing more than
consultation are demonstrably inaccurate and do not serve the purpose of
upholding Indigenous rights or promoting harmonious relations between
Indigenous peoples and States. States should be counselled against efforts to deny
Indigenous peoples the full and non-discriminatory observance of their rights by
undermining application of FPIC.
1.1 The Assembly of First Nations
The AFN is the national, political organization of First Nation governments and
their citizens, including those living on and off reserve in Canada. The role and
function of the AFN is to serve as a nationally delegated forum for determining
and harmonizing effective, collective and cooperative measures on any subject
matter that the First Nations delegate for review, study, response or action, and to
advance the rights, positions and aspirations of First Nations.
The AFN National Executive is made up of National Chief Perry Bellegarde, ten
Regional Chiefs, and the chairs of the Elders, Women’s and Youth Councils of
the AFN. The role of the National Chief and the AFN is to advocate on behalf of
First Nations as directed by Chiefs-in-Assembly.
The AFN convenes at least two national meetings per year, with an open
invitation to all Chiefs and delegates from 634 First Nations, representing more
than 900,000 Indigenous Peoples across Canada. At these meetings, resolutions of
the Chiefs-in-Assembly are passed which provide direction, guidance, positioning
and planning of the AFN for the coming years.
Chiefs-in-Assembly have passed many resolutions to support all First Nations in
their work to ensure the full and meaningful implementation of the United
Nations Declaration on the Rights of Indigenous Peoples. A few examples of
• Support for Bill C-262: An Act to ensu